AS TO THE ADMISSIBILITY OF
Application No. 25165/94
by Mevlude AKDENIZ
against Turkey
The European Commission of Human Rights sitting in private on
1 December 1997, the following members being present:
Mr S. TRECHSEL, President
Mrs G.H. THUNE
Mrs J. LIDDY
MM E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs M. HION
MM R. NICOLINI
A. ARABADJIEV
Mr M. de SALVIA, Secretary to the Commission ;
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms ;
Having regard to the application introduced on 18 August 1994 by
Mevlude AKDENIZ against Turkey and registered on 16 September 1994
under file No. 25165/94 ;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
17 March 1995 and the observations in reply submitted by the
applicant on 21 February 1996 ;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, born in 1955, is a Turkish citizen of Kurdish
origin who resides at Sesveren hamlet, Karaorman village, Kulp,
Diyarbakir. She is represented before the Commission by Professor Kevin
Boyle and Ms. Françoise Hampson, both of the University of Essex,
England.
A. The particular circumstances of the case
The facts, which are in dispute between the parties, may be
summarised as follows.
The applicant gives the following account of events.
On 20 February 1994 at approximately 2.30 pm, some 200 soldiers
from the Kulp District Gendarme Command gathered around Sesveren
hamlet, which belongs to Karaorman village. Some of the soldiers
entered the village and asked the villagers for food. The soldiers were
provided with food and drink.
While some of the soldiers were eating, other soldiers entered
houses and other buildings in the village and forced the occupants,
men, women, children and the aged, out into the street. At that time,
the applicant's son Mehdi Akdeniz was praying in the mosque and he too
was forced on to the street.
Once the villagers had been herded together in the village
square, the soldiers started burning the village houses. When the
burning had finished, a soldier of unknown rank read six names from a
list and told these six persons to stand separately from the rest of
the people in the square. The six persons were: Mehdi Akdeniz (22 years
old), Halit Akdeniz (35 years old), Irfan Akdeniz (18 years old),
Mehmet Sirin Allahverdi (35 years old), Ziya Çiçek (22 years old) and
Faik Akdeniz (35 years old).
The soldiers assaulted these six persons in front of the rest of
the villagers and then took them out of the sight of the villagers.
The soldiers remained in the village for some two hours and then walked
with the group of six persons to a neighbouring hamlet some 1.5 km
away. Vehicles were waiting for the soldiers there and the six persons
were taken away.
The soldiers released Irfan Akdeniz, Mehmet Sirin Allahverdi and
Ziya Çiçek after holding them for 18 days. These persons stated that
they had themselves been subjected to intense torture during their
period in custody but that Mehdi Akdeniz had been exposed to the most
severe torture.
According to the information given by those released, Mehdi
Akdeniz was held at Kulp District Gendarme Command for five days where
he was subjected to intense torture. He was then sent to Silvan and he
was not seen again by the others in the group, all of whom were
released save for Faik Akdeniz, who was remanded in custody and sent
to Diyarbakir E-Type prison, and Ziya Çiçek.
On 10 March 1994 a villager was released from custody at the
Silvan District Gendarme Command. He stated that he had seen Mehdi
Akdeniz in Silvan and that Mehdi had been taken to Diyarbakir after
being held for one week in Silvan. He said that Mehdi Akdeniz was in
very poor condition and that it was clear that he had been severely
tortured. The villager refused to disclose his identity, fearing
retaliation by the security forces.
Three further people - Cezvet Yilmaz and Mazhar, who are
currently in Elazig prison, and Resat Parnuk, who is free - were at
Diyarbakir Provincial Gendarme Command and stated that they had seen
Mehdi Akdeniz there. They said that Mirza Ates and Kudusi Adigüzel, who
have been missing for a long time, were being held with Mehdi Akdeniz.
It has further been stated by a large number of people that many
disappeared persons have been seen at Diyarbakir and that once persons
have been taken there, it is not possible to contact them.
The applicant has received no further information in relation to
her son. She states that that she has made several applications, both
orally and in writing, about Mehdi Akdeniz to the Diyarbakir State
Security Court which have not been answered. She has submitted a copy
of a request which she made to the Chief Prosecutor at the State
Security Court on 11 May 1994, in which she states that her son had
been taken into custody for an alleged offence on 20 February 1994 and
requests that his position be immediately communicated to her and that
he be brought before the Prosecutor, as no information had been given
to her about his fate and his condition and as they were concerned for
his life. Upon this request there is a note by the Chief Prosecutor,
also dated 11 May 1994, which reads as follows: "His name was not
discovered on examination of our custody records. For your
information."
The applicant submitted the Human Rights Association Report of
February 1994, according to which in February 1994, 50 houses in the
village of Sesveren (Kulp) were burned down by security forces.
The respondent Government state as follows.
No operation was carried out in the Kulp-Sesveren area on 20
February 1994. The Government submit a copy of the custody records
from the Kulp District Gendarme Command for the period 26 January - 24
February 1994 and state that neither the applicant's son nor the other
five persons mentioned were taken into custody or detained.
The inhabitants of the village of Karaorman (Sesveren included)
have fled from their homes because of intimidation by the PKK.
B. Relevant domestic law
Civil and administrative procedures
Article 125 of the Turkish Constitution provides as follows:
(translation)
"All acts or decisions of the Administration are subject to
judicial review ...
The Administration shall be liable for damage caused by its own
acts and measures."
The principle of administrative liability is reflected in the
additional Article 1 of Law 2935 of 25 October 1983 on the State of
Emergency, which provides:
(translation)
"... actions for compensation in relation to the exercise of the
powers conferred by this law are to be brought against the
Administration before the administrative courts."
Proceedings before the administrative courts are in writing.
Any illegal act by civil servants, be it a crime or a tort, which
causes material or moral damage may be the subject of a claim for
compensation before the ordinary civil courts and the administrative
courts. Damage caused by terrorist violence may be compensated out of
the Social Help and Solidarity Fund.
Criminal procedures
The Turkish Criminal Code makes it a criminal offence to subject
someone to torture or ill-treatment (Article 243 in respect of torture
and Article 245 in respect of ill-treatment inflicted by civil
servants). As regards unlawful killings, there are provisions dealing
with unintentional homicide (Articles 452 and 459), intentional
homicide (Article 448) and murder (Article 450).
In general, in respect of criminal offences, complaints may be
lodged, pursuant to Articles 151 and 153 of the Code of Criminal
Procedure, with the public prosecutor or the local administrative
authorities. The public prosecutor and the police have a duty to
investigate crimes reported to them, the former deciding whether a
prosecution should be initiated, pursuant to Article 148 of the Code
of Criminal Procedure. A complainant may appeal against the decision
of the public prosecutor not to institute criminal proceedings.
If the suspected authors of the contested acts are military
personnel, they may also be prosecuted for causing extensive damage,
endangering human life or damaging property, if they have not acted
under orders in conformity with Articles 86 and 87 of the Military
Code. Proceedings in these circumstances may be initiated by the
persons concerned (non-military) before the competent authority under
the Code of Criminal Procedure, or before the suspected persons'
hierarchical superior (Articles 93 and 95 of Law 353 on the
Constitution and Procedure of Military Courts).
If the alleged author of a crime is a State official or civil
servant, permission to prosecute must be obtained from local
administrative councils. The local council decisions may be appealed
to the State Council; a refusal to prosecute is subject to an automatic
appeal of this kind.
Emergency measures
Articles 13 to 15 of the Constitution provide for fundamental
limitations on constitutional safeguards.
Provisional Article 15 of the Constitution provides that there
can be no allegation of unconstitutionality in respect of measures
taken under Laws or Decrees enacted between 12 September 1980 and 25
October 1983. That includes Law 2935 on the State of Emergency of 25
October 1983, under which decrees have been issued which are immune
from judicial challenge.
Extensive powers have been granted to the Governor of a region
in a state of emergency by such decrees, especially Decree 285, as
amended by Decrees 424 and 425, and Decree 430.
Decree 285 modifies the application of Law 3713, the Anti-Terror
Law (1981), in those areas which are subject to the state of emergency,
with the effect that the decision to prosecute members of the security
forces is removed from the public prosecutor and conferred on local
administrative councils.
Article 8 of Decree 430 of 16 December 1990 provides as follows:
(translation)
"No criminal, financial or legal responsibility may be claimed
against the Governor of a region in the state of emergency or a
Governor of a province within a state of emergency region in
respect of their decisions or acts connected with the exercise
of the powers entrusted to them by this decree, and no
application shall be made to any judicial authority to this end.
This is without prejudice to the rights of individuals to claim
indemnity from the State for damage suffered by them without
justification."
COMPLAINTS
The applicant complains of violations of Articles 3, 5, 6, 13 and
14 of the Convention.
As to Article 3, she alleges, as the next-of-kin of Mehdi
Akdeniz, that the latter has been subjected to torture. She further
considers that she has herself suffered inhuman treatment as she has
been unable to discover what has happened to her son and this has
caused her mental suffering. She also considers that both she and her
son have suffered degrading treatment as they have been discriminated
against on grounds of their race.
As to Article 5, she complains, as the next-of-kin of Mehdi
Akdeniz, that the latter has been unlawfully deprived of his right to
liberty.
As to Article 6, she complains, as the next-of-kin of Mehdi
Akdeniz, that the latter has been denied a fair and public hearing
within a reasonable time by an independent and impartial tribunal
established by law.
As to Article 13, she complains of the lack of an independent
national authority before which these complaints of violations can be
made with any prospect of success.
As to Article 14, she complains that both she and her son have
been unable to enjoy the rights and freedoms set forth in the
Convention due to the practice of discrimination on the ground of race.
As regards Article 14 in conjunction with Article 13, she points out
that only Turkish citizens of Kurdish origin are affected by the
breakdown of the system of "effective remedies".
As regards exhaustion of domestic remedies, the applicant
maintains that there is no requirement that she pursue such remedies,
as any alleged remedy is illusory, inadequate and ineffective. In this
respect she states that (a) there is an administrative practice of non-
respect of the rule which requires the provision of effective domestic
remedies; (b) whether or not there is an administrative practice,
domestic remedies are ineffective in this case owing to the failure of
the legal system to provide redress; (c) whether or not there is an
administrative practice, the situation in South-East Turkey is such
that potential applicants have a well-founded fear of the consequences,
should they invoke alleged remedies.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 18 August 1994 and registered
on 16 September 1994.
On 28 November 1994 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on 17 March
1995 and 29 November 1995. The applicant replied on 18 May 1995 and 20
February 1996.
THE LAW
The applicant complains about the taking into custody and
disappearance of her son. She invokes Article 3 (Art. 3) (prohibition
on inhuman and degrading treatment), Article 5 (Art. 5) (right to
liberty and security of person), Article 6 (Art. 6) (right to a fair
trial), Article 13 (Art. 13) (right to effective national remedies for
Convention breaches) and Article 14 (Art. 14) (prohibition on
discrimination).
Exhaustion of domestic remedies
The Government submit that the applicant failed to comply with
the requirement under Article 26 (Art. 26) of the Convention to exhaust
domestic remedies before lodging an application with the Commission.
The Government contend that the applicant has not instituted any
legal proceedings. They refer to the possibility of an administrative
action pursuant to Article 125 of the Constitution, Law 2935 of 25
October 1983 on the State of Emergency and Decree 430 of 16 December
1990. They state that the applicant could have pursued a criminal
complaint pursuant to Articles 151 and 153 of the Code of Criminal
Procedure or to Articles 93 and 95 of Law 353 on the Constitution and
the procedure applicable to military tribunals.
The Government submit that the applicant has neither filed a
complaint concerning the "disappearance" of her son, nor requested the
opening of an investigation in relation to the alleged facts, but
contented herself with requesting information on the detention on
remand of her son.
The applicant submits that she has brought her complaints to the
attention of the authorities, including the Public Prosecutor, and that
no action has been taken. The only answer she has received to her
numerous petitions is the answer of 11 May 1994 of the Chief Prosecutor
of the State Security Court in Diyarbakir. The applicant submits that
despite her numerous petitions, no attempt has been made to investigate
the case, for example by taking the statements of the persons who saw
her son while in detention. The applicant finally submits that in
view of the outright denial by the security forces that her son has
been taken into custody, any further action on her part would be
futile. She also refers to the negligible rate of prosecution of
members of the security forces for human rights abuses in South-East
Turkey.
The Commission recalls that Article 26 (Art. 26) of the
Convention only requires the exhaustion of such remedies which relate
to the breaches of the Convention alleged and at the same time can
provide effective and sufficient redress. An applicant does not need
to exercise remedies which, although theoretically of a nature to
constitute remedies, do not in reality offer any chance of redressing
the alleged breach. It is furthermore established that the burden of
proving the existence of available and sufficient domestic remedies
lies upon the State invoking the rule (cf. Eur. Court HR, De Jong,
Baljet and Van den Brink v. the Netherlands judgment of 22 May 1984,
Series A no. 77, p. 18, para. 36, and Nos. 14116/88, and 14117/88,
Sargin and Yagci v. Turkey, Dec. 11.05.89, D.R. 61 p. 250).
The Commission notes the applicant's statement that she made
several applications, both orally and in writing, to the Diyarbakir
State Security Court, which remained unanswered. She has not given any
details as to the precise contents of these requests. It is clear,
however, that in any case she made a petition to the Chief Prosecutor
of the State Security Court of Diyarbakir about the fate and condition
of her son, and she indicated in her petition that he had been taken
into custody and then disappeared. The reply of the Chief Prosecutor
at the State Security Court of Diyarbakir was only that the name of the
applicant's son had not been found on their custody records. The Chief
Prosecutor did not indicate that he would make any further enquiries,
nor did he give any advice as to further measures which the applicant
herself could take. While the Government point out that a request for
information is not the same as a formal complaint, the Commission is
not satisfied that, in view of the denial of the the authorities that
the applicant's son had been in their custody, the further step of
registering an official complaint of disappearance would have served
any practical or effective function.
The Commission is therefore satisfied that in the circumstances
of this case the applicant can be regarded as having brought her
complaints before the relevant and competent authorities and that
accordingly she is not required under Article 26 (Art. 26) of the
Convention to pursue any other legal remedy in this regard (cf. Nos.
16311/90, 16312/90 and 16313/90; N.H., G.H. and R.A. v. Turkey, Dec.
11.10.91, unpublished and No. 19092/91, Yagiz v. Turkey, Dec. 11.10.93,
D.R. 75, p. 207).
The Commission concludes that the applicant may therefore be
considered to have complied with the domestic remedies rule laid down
in Article 26 (Art. 26) of the Convention and that the application
should not be rejected under Article 27 para. 3 (Art. 27-3).
As to the substance of the applicant's complaints
The Government deny that any operation was carried out in the
area on 20 February 1994 and that the applicant's son was taken into
custody or detained. They submit that the applicant's allegations are
unsubstantiated and of dubious credibility. They further submit that
it is "notorious" that the village of Karaorman has been abandoned by
the villagers because of intimidation by the PKK.
The applicant maintains her account of events, which she states
is supported by detailed statements from a number of witnesses.
The Commission considers, in the light of the parties'
submissions, that the case raises complex issues of law and of fact
under the Convention, the determination of which should depend on an
examination of the merits of the application as a whole. The
Commission concludes, therefore, that the application is not manifestly
ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of
the Convention. No other grounds for declaring it inadmissible have
been established.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the
merits of the case.
M. de SALVIA S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy